This is the court decision in Rojas v. BroadwayHealthcare Management, Petition #1999-023497 with respect to the Petitioner’s application for review and modification of the Court’s April 22, 2001 Order. Petitioner while working for Respondent on March 26, 1999 fell injuring his back. Petitioner filed a claim petition and an order approving settlement was ultimately entered on August 22, 2001 by the Honorable Matthew Parks for 7 1/2 of permanent partial total disability for the orthopedic residuals of an acute lumbosacral strain and sprain of the left sacroiliac joint.

The relevant facts are as follows. On March 26, 1999 while working as a laundry attendant for Respondent, Petitioner fell injuring his back. The Petitioner filed a claim petition and a motion for medical treatment and temporary benefits, but later abandoned that motion and moved to permanency evaluations. The Company’s doctor, Dr. Gary I. Cohen evaluated Petitioner on May 14, 1999. Dr. Cohen recorded the Petitioner’s complaints as back pain radiating down his left leg. He also recorded the Petitioner’s complaints as “pain in his left lower back radiating down his legs at times, sometimes down past the knee.” Dr. Cohen performed a straight leg raising test and found Petitioner’s straight leg raising as positive for pain on the left and negative on the right.

At a subsequent examination On June 8, 1999 Dr. Cohen recorded the Petitioner’s complaints as pain in each leg. His progress notes indicated that the Petitioner continued to experience pain down his left leg with straight leg raising against positive on the left and negative on the right.

Dr. Gerald Hayken examined the Petitioner on January 20, 2000. He recorded the Petitioner’s complaints as “lower back pain with radiation into his left leg.” Dr. Hayken found straight leg raising as causing, “left buttock pain with radiation into the left thigh.”

Dr. Henry E. David also evaluated Petitioner and reviewed his medical history. In his report of June 14, 2001 he recorded the Petitioner’s complaints “...as referable to his low back pointing to the lumbosacaral region, left sacroiliac joint and pain radiating down the posterial lateral aspect of the leg pointing to the L-5 dermatome.” Based upon a reasonable degree of medical certainty and probability, Dr. David diagnosed Petitioner as having an acute and chronic lumbosacral strain and sprain and strain of the left sacroiliac joint. He did not recommend any further treatment or diagnostic testing .

Dr. Lawrence Zazzo evaluated the Petitioner on behalf of the Respondent and also reviewed his medical history. He also recorded the Petitioner’s complaints as, “...intermittent left lower back discomfort (he points to an area near the sacroiliac joint)...he denies any radicular component.” Dr. Zazzo assessed Petitioner as having symptoms consistent with a chronic low grade left sacroiliac dysfunction. He also found that the Petitioner had reached maximum medical improvement.

It is significant to note that neither a magnetic resonance imaging (MRI) test nor any comparable diagnostic testing was ever conducted with respect to the 1999 accident. Moreover, neither evaluator opined or even suggested that the Petitioner may have suffered a herniated disc as a consequence of the 1999 accident.

Petitioner testified at the 1999 hearing for the proposed settlement that his symptoms at the time were pain in his low back with pain radiating up his left leg. He did not testify as to any complaints of pain in his right leg. An order approving settlement was approved on August 22, 2001 by Judge Matthew Parks fixing disability at 7 1/2 of partial total for the orthopedic residuals of an acute lumbosacral strain and sprain of the left sacroiliac joint.

On April 21, 2002 the Petitioner was assisting his neighbor, Mr. Anthony Harris in repairing a part on Mr. Harris’s motorcycle tailpipe. The Petitioner initially testified that prior to his injury he was on his hands and knees and had removed three screws from the tailpipe. Upon subsequent questioning, he indicated that he did not actually work on the tailpipe, but was on his hands and knees pointing to and directing Mr. Harris as to how to complete the repair. As he reached for a tool tray and tried to get up, he felt pain in his back and down his legs and was unable to stand up. Mr. Harris had to carry him into the house. The testimony of Mr. Harris as to how the incident happened was substantially similar to the Petitioner’s testimony. Later that day he went to the emergency room at Rancocas Hospital. The emergency room records recorded the Petitioner’s complaints “...as pain in the back with radiation down his legs...” and “...pain radiating down his left leg...”

An MRI was performed on September 24, 2002 and revealed a right inferior disc herniation at L4-5 and a disc herniation with annular tear at L3-4. An electrodiagnostic test (EMG) was performed on October 21, 2002 and evidenced chronic S1 radiculopathy which was worse on the right side than the left and chronic L5 radiculopathy, worse on the right side.

The issue before the Court is whether the incident of April 21, 2002 with evidence of herniated discs was as a result of an innocent aggravation of his 1999 work related accident, or a new incident and injury, by way of an intervening act of assisting in the repairing the motorcycle.

Petitioner testified that as a result of the 1999 accident he felt pain radiating down his back and legs mainly on his left side. After the 2002 incident involving the motorcycle he testified that he felt pain down his left and right leg although not as much as on his right side. He also testified that the pain has always been the same.

Petitioner stated in his certification for the within motion that he had not worked since the date of the order approving settlement for his March 26, 1999 accident. However, he testified that subsequent to the 1999 accident he actually worked for three summers in 1999, 2000 and 2001 for Decks Unlimited, restoring decks. This work involved a lot of bending and kneeling, as well as reaching overhead. Petitioner further testified that subsequent to the April 21, 2002 incident at issue, he worked for a while at a service station performing automotive repair work.

Dr. David who was the evaluator on behalf of the Petitioner in regard to both incidents, testified that in his opinion the herniated discs, objectively diagnosed for the first time on September 24, 2002, were causally related to the accident of March 1999. Dr. David maintained this opinion even though his evaluation at the time of the 1999 accident diagnosed a left sacroiliac strain and sprain, did not even suggest a possible herniation and did not recommend any further treatment or diagnostic testing. Nevertheless Dr. David based his current opinion on the mechanism wherein he understood that the Petitioner was bending down on his hands and knees, which he testified would not have put enough stress on the Petitioner’s back to cause a herniation. He further testified that while it was difficult to approximate, the EMG findings of chronic radiculopathy probably meant that the injury was more than one year old.

Dr. David did however concede that the Petitioner’s complaints were worse after the second incident. Dr. David further conceded that his initial evaluation after the 1999 accident only noted left sided complaints and was not necessarily consistent with findings of a herniated disc, while his examination and report of April 29, 2002 after the motorcycle incident, recorded Petitioner’s complaints as pain down both legs.

Dr. Wulfsberg evaluated the Petitioner on behalf of the Respondent with respect to the 2002 incident. Ninety to ninety-five percent (90 - 95%) of his practice is dedicated to treating patients. Dr. Wulfsberg testified that it was his opinion, within a reasonable degree of medical certainty, that the herniated discs was a new diagnosis and occurred while the Petitioner was assisting in the repair of the motorcycle and not from the accident of 1999. Dr. Wulfsberg based his opinion on a careful review of the medical records and evaluations after the March 26, 1999 and April 21, 2002 accidents, and on his examination of the Petitioner on June 12, 2002. He testified that the Petitioner told him that he had wrenched his back taking out a motorcycle tailpipe. He recorded the Petitioner’s complaints as back pain with pain down both legs and that side bending to the right seemed to exacerbate his pain. Dr. Wulfsberg found that after the 1999 injury the Petitioner’s complaints set forth in the various medical reports, and as recorded by both evaluating Doctors David and Zazzo, were complaints of pain in his lower back radiating primarily down the left leg. Dr. Wulfsberg noted that Dr. David and Dr. Zazzo diagnosed a left sacroiliac sprain which Dr. Wulfsberg explained is a strain of the muscle in the back where the spine attaches to the pelvis. He noted that also there was no diagnosis or suggestion of a herniation by any doctor afer the 1999 accident.

Dr. Wulfsberg further found as significant that after the 2002 incident, the Petitioner complaints were different in that he complained to him and to Dr. David of pain in both legs. Further significant was the MRI which showed a small disc herniation with annular tear at L3-4 and a small right inferior disc herniation at L4-5 which Dr. Wulfberg testified would account for the Petitioner’s new right side symptoms. Dr. Wulfsberg also noted that the EMG conducted after the second incident which showed chronic S1 radiculopathy, left worse than right, and chronic L5 radiculopathy right worse than left, objectively confirmed the Petitioner’s complaints of radiculopathy in both legs.[1] With respect to how long these symptoms existed, Dr. Wulfsberg testified that the reference to chronic implies that the symptoms have been occurring for at least twelve (12) weeks. He explained that in medical literature, acute is defined as less than six (6) weeks and chronic more than twelve (12) weeks.

Based on all the evaluative and diagnostic testing, medical evidence and Petitioner’s new right sided symptoms, it was Dr. Wulfserg’s opinion, within reasonable degree of medical certainty, that the herniated disc was a new injury caused by a new incident when the Petitioner assisted in the repair of the motorcycle.

I find that the preponderance of the credible evidence shows that the herniated discs objectively diagnosed in September 24, 2002 by MRI and the Petitioner’s new pain symptoms objectively diagnosed by EMG on October 21, 2002 are substantially different from the diagnosis and symptoms after the 1999 accident, and consistent with and the result of a new accident and injury caused by the Petitioner’s intervening act of assisting in the repair of the motorcycle. It is the Petitioner’s burden of proof to show by a preponderance of the credible evidence that his herniated discs were caused by the 1999 injuries and simply aggravated by the 2002 incident, or the 1999 accident made Petitioner more susceptible to re-injury. The Petitioner has not met this burden. Therefore I do not find that the Petitioner’s injury of April 21, 2002 was causally related to his work related accident of March 26, 1999. I make these findings for the following reasons.

The testimony and findings of Dr. David are insufficient to establish that the herniated discs diagnosed on September 24, 2002 were causally related to the Petitioner’s 1999 work related accident. There are significant inconsistencies in the testimony and evaluations of Dr. David. His examination after the 1999 accident recorded Petitioner’s complaints as in the low back in the lumbosacral area of the left sacroiliac joint with pain radiating down his left leg. His physical examination found tenderness over the left sacroiliac joint. Dr. David did not record or find any right sided complaints or review any diagnostic tests. He did not recommend any further treatment or testing and did not even mention the possibility of a herniated disc. Dr. David diagnosed the Petitioner’s injury as an acute and chronic lumbosacral strain and sprain of the left sacroiliac joint.

In Dr. David’s evaluation after the 2002 motorcycle incident he recorded the Petitioner’s complaint down the posterior of both legs which were different symptoms from the1999 accident. His physical examination also found pain radiating down both of Petitioner’s legs and that the Petitioner’s condition was worse after the 2002 incident. He conceded in his testimony that his examination after the 1999 incident was not necessarily consistent with findings of a herniated disc. Despite the clear difference between the Petitioner’s recorded complaints after both incidents, the absence of diagnostic tests after the 1999 accident, and the objective diagnostic testing after the 2002 incident confirming the Petitioner’s new right sided complaints, Dr. David testified that the herniated discs had occurred at the time of the 1999 accident.

A Judge of Compensation of course, is not bound by the conclusionary opinions of medical experts. However, he must give consideration to such testimony and evaluate it based upon the doctor’s qualifications and demeanor, the inherent trustworthiness of the testimony, and the quality of the underlying examination upon which the opinions are based. SeeMargaritondo v. Stauffer Chemical Co., 217 N.J. Super. 560 (App. Div. 1985). The Judge of Compensation as trier of the facts, may adopt as much of the expert testimony as appears sound, reject all of it, or adopt all of it. SeeAmaru v. Stratton, 209 N.J. Super. 1 (App. Div. 1985).

I find that Dr. David’s opinion as to the existence of herniated discs prior to the MRI study of September 2, 2002, is speculation unsupported by objective medical evidence. I therefore reject his findings.

I accept the opinion of Dr. Wulfsberg with regard to the herniated disc being a new injury caused by the Petitioner’s intervening act of assisting in the repair of the motorcycle. I find that his conclusions are more in line with the factual and objective medical evidence than that of Dr. David. Dr. Wulfsberg’s testimony was clear, logical and consistent with the Petitioner’s recorded complaints as reflected in the various medical evaluations, and consistent with the diagnostic findings of the MRI and EMG.

Petitioner claims that the herniated discs was simply an innocent aggravation of his 1999 work related accident, citing, Amey v. Friendly’s Ice Cream, 231 N.J. Super 279 (App. Div. 1989) and Kozinsky v. Edison Products Company, 222 N.J. Super. 530 (App. Div. 1988). However, the Petitioner’s act of assisting in the repair of the motorcycle was a fixed, determinable and distinct incident resulting in a trauma which broke the chain of

causation. The objective medical evidence and the Petitioner’s recorded complaints evidence that the herniated discs was a new injury caused by Petitioner’s assisting in the repair of the motorcycle and not an innocent aggravation.

I do not find as persuasive Petitioner’s argument that a single reference in an employee incident report and in Dr. Cohen’s report after the 1999 incident as to pain in the Petitioner’s legs as determinate of the existence of a herniated disc in 1999, particularly in the absence of any objective diagnostic testing to that effect and in light of the totality of Petitioner’s complaints in all the other medical reports and evaluations.

In addition, I find the Petitioner’s testimony inconsistent thus raising issues about his credibility. First, the Petitioner’s testimony in 2003 as to his symptoms after the 1999 incident is inconsistent with his testimony of 2001. Second, his 2003 testimony as to his subjective complaints, is ambiguous and in direct conflict with the objective medical evidence and complaints recorded by the medical professionals after each incident. Third, Petitioner stated in his certification for the within motion that he had not worked since the date of the order approving settlement for his March 26, 1999 accident. However, he testified that he had actually worked for three summers in 1999, 2000 and 2001 for Decks Unlimited, restoring decks, work which involved a lot of bending and kneeling, as well as reaching overhead. He also testified that subsequent to April 21, 2002 he worked for a while at a service station performing automotive repair work. Moreover, the general nature of his responses and their spontaneity, his general testimonial demeanor, behavior and facial expressions all combine to raises issues with respect to his testimonial integrity.

Video surveillance taken of Petitioner by Respondent on September 4, 24, 27 and October 12 of 2002 was submitted into evidence. However the activity on the surveillance tape was indeterminate and inconsequential to my decision.

For all the aforesaid reasons, Petitioner’s motion is hereby denied. Further, in view of the fact that I have determined that the incident of 2002 was an intervening accident causing a new injury, the Petition is also hereby dismissed.

Stenographic fee of $600.00 to State Shorthand payable by Respondent.

[1] The EMG states radiculopathy “right worse than right”, however Drs. David and Wulfsberg testified that in accordance with the EMG finding this was a typographical error. It should have read “left worse than right.”

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